By stabroek news december 3, 2017

Saying that ministerial directives to two constitutional commissions were due to bad legal advice, political analyst David Hinds believes that the government ought to be mindful of the political implications.

Hinds made these comments in reaction to a recent court ruling by Chief Justice (ag) Roxane George SC that State Minister Joseph Harmon showed blatant disregard for the constitution when he issued a directive to the Secretary of the Police Service Commission for the body to halt its consideration of planned police promotions. The ruling was similar to an earlier judgment in 2015, when a court found that Minister Simona Broomes, then Junior Minister of Social Protection, unlawfully directed the Public Service Commission to suspend interviews to fill vacancies in her ministry.

“This business of ministers giving directives to commissions smacks of political overreach… [and] bad political optics that should for the most part be avoided. I am glad the court has signaled its intolerance for it,” Hinds told Sunday Stabroek in a recent interview.

Hinds, an executive member of the Working People’s Alliance (WPA), which is a part of government coalition partner A Partnership for National Unity (APNU), stated that this issue has not been discussed at a party level and a party view cannot be given.

However, as a political analyst, he opined that the rulings in both cases provide two important lessons. The first, he said, is that government was “obviously given legal advice the court disagreed with. This is normal in the day-to-day functioning of the political system. I don’t think the government willfully set out to violate the constitution; it just got bad advice.”

As a result, he urged that the government be wary that the accumulation of these negative rulings not feed the perception that “authoritarianism is beginning to emerge.”

He said that government has to seek broader advice, beyond the Attorney General (AG). “I don’t know the extent to which the advisory committee to the AG was involved in these matters,” he further noted.

Hinds noted too that another concern is the political implications of these actions. “I think the government has to always pay attention to the political side of things, even when they think that the action is potentially on good legal ground,” he noted. “We have to get the decades of executive tyranny out of the political system. In this regard, executive restraint and judicial review are critical. I hope the government heeds the court’s rulings and respond with due restraint,” he said.

Another lesson to be learnt from the rulings, Hinds added, is the fact that the judiciary has been quite regularly ruling against the executive. “This is democracy in action—one branch of government oversighting another branch. We have not been accustomed to seeing this kind of judicial review and outcome in Guyana,” he said, before adding that it is quite refreshing to see the court extricating itself from political influence, “something that did not happen enough under the two former governments. It is a step forward for our democratic aspirations.”

The most recent ruling resulted from an action filed by former Attorney General Anil Nandlall in August on behalf of Rajendra Jaigobin challenging Harmon’s directive.

Nandlall asked the court to grant a declaration that the Police Service Commission shall not be subject to the direction or control of any other person or authority in the exercise of its functions and that Harmon’s direction, by way of a letter, was a violation of Article 226 of the Constitution and therefore unlawful, null, void and of no legal effect.

Nandlall had told this newspaper after the ruling was delivered that the Chief Justice granted the declarations sought by the Applicant (Jaigobin) and ordered the Attorney General (Respondent) to pay to the Applicant $200,000 as costs.

He had informed that in an oral version of her ruling, the Chief Justice stated that the letter sent by Minister Harmon was in flagrant disregard of the constitution and was unlawful, null, void and of no effect. He said the court also voiced its hope that the Commission did not act upon the unconstitutional letter.

According to Nandlall, Justice George also noted that only two years ago, Minister Broomes had issued similar directions to a Service Commission and although the Court with the consent of the Attorney General had declared that that letter had been in violation of the constitution, a similar palpable violation of the constitution was repeated. He said the judge added that in the face of this flagrant disregard for the constitution, which the state conceded two years ago, it should have done the honourable thing and correct the error rather than seek to defend the proceedings.

President David Granger, in whose name the directive was issued by Harmon, has since said that he will await the judge’s written ruling before he gives a response.

Granger had previously justified the directive saying that it was done in wake of complaints about the police.

A statement from the Ministry of the Presidency had reported the president as saying that there had been many legitimate complaints by members of the Police Service Commission and aggrieved police officers of abuse and malpractice in the Guyana Police Force and it is for this reason that he had asked for the promotion of police officers to be delayed. “We are investigating the complaints, which have been made to us and we have asked the Police Service Commission to simply delay so that we can answer those queries and once those queries are satisfactorily answered we will proceed. It’s no intention on my part to impede the work of the Commission,” the president had said.

What is interference?

For his part, Harmon maintains that all Granger was seeking to do was to address the concerns of the police ranks who thought they were being bypassed in the promotion process and he questioned whether there was any alternative to the president issuing a directive to prevent the violation of an individual’s constitutional right.

While noting that courts rule based on the evidence presented, Harmon asked “What do you do? What is interference? Is there an intervention which said ‘Do not promote somebody or promote somebody?’”

He questioned whether in wake of evidence of a request, “you hold your hand on the process to allow for an investigation to take place before you continue”. According to Harmon, there was nothing in the letter which said “do this or so that.”

Harmon in noting that the request came from persons responsible for the security of the state, asked if “there are actions which tend to threaten the stability of the state by destabilising the senior corps of your principal law enforcement agency, whether you are supposed to sit down and do nothing about?”

He insisted that Granger’s directive had the effect of preventing a constitutional violation of individuals’ rights, which is sometimes what one ought to look at. “We are looking at the rights of not just one individual but several individuals by a process which had become corrupted and in which now you have several officers who are going to be superseded,” he stressed.

“They [the affected officers] have a right too. They have a right to expect that because of their seniority, they will be promoted… not superseded. These are constitutional rights as well,” he said while noting that though people will have their own opinions on things, the court has ruled.

While the government has said it received complaints, none of them have been made public.

Not concerned

Meanwhile, Natural Resources Minister Raphael Trotman, the Leader of the Alliance for Change (AFC), in an invited comment, told Sunday Stabroek that the AFC is “not at all concerned” about the court ruling.

“Thankfully, we exist in a democracy and one of the hallmarks of a democracy is to have what is known as the separation of powers – government, courts and the parliament. And so, from time to time, and rightfully so, courts interpret the actions of the government and even of the parliament and make pronouncements,” he said.

According to Trotman, what is good is that “we make decisions as policymakers and those decisions are reviewed and if they are reviewed and found not to be right, insofar as the constitution is concerned, it is the responsibility of the government to bring itself into alignment if it agrees. If not, it can file an appeal.”

Trotman further told this newspaper that the ruling is a part of normal democratic governance. “Insofar as the AFC being concerned, we are happy that the judiciary is at work. We’re happy that there are no attempts to stymie the work of the judiciary to frustrate it, to deny it its rightful role,” he said.

“It happens every day in every part of the world, whether it be the US, UK or in Barbados. So, it is not a matter of concern and certainly we will look to see what actions we’ve taken as a government, and where AFC in particular is concerned, to ensure that we don’t have our work reviewed. We encourage the reviews and we would expect that government continues to support the work of the judiciary as a watchdog,” he noted.

Trotman informed that there have been “cursory” discussions on this matter. “We’re quite happy that our actions come under review by the judiciary and we have no doubt at out upcoming meetings will have the benefit of reading those decisions to see whether we wish to say anything further,” he said.

Nothing sinister

Meanwhile, President of the Guyana Bar Association Kamal Ramkarran said that the issue has not yet been discussed. However, he said in his view there is often nothing sinister in government making errors. “This is why we have the court and I am very pleased to see that the courts have been doing their work. Governments all over the world make these mistakes. In England and the United States, you have these constitutional actions to correct what might be unconstitutional. That’s why we have the courts. There is nothing sinister about it…you make a mistake and the court corrects it,” he said.

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